BC Court of Appeal: Previous Settlements to be Deducted from Indivisible Injury Awards
Reasons for judgement were released today from the BC Court of Appeal which are of great significance for anyone advancing an ICBC injury claim which involves more than one event which contributed to the injury.
In this case the Plaintiff was injured in 2 separate car accidents. She was not at fault for either. The injuries in both were found to be ‘indivisible’ meaning that the injuries were ’caused or materially contributed to’ by both events.
The Plaintiff claimed damages for both crashes. She settled one claim for $315,000. She succeeded in her lawsuit against the other driver and had her injuries valued at about $400,000. The trial judge then went on to order that the settlement proceeds from the second accident ($315,000) must be subtracted from the $400,000 awarded at trial. This was so because the injury was ‘indivisible’.
Today the BC Court of Appeal upheld this approach. In particular the court made (or confirmed) several important findings:
If two torts were necessary causes of the injuries, liability for the loss resulting from those injuries may be apportioned based on fault, but each tortfeasor is responsible for the entire damage to which their tort materially contributed beyond the de minimus range ( I would imagine this does not hold true, however, in cases of contributory negligence)
Although the concern in the case at bar is whether to deduct settlement proceeds from global damage awards rather than whether to make an exception to settlement privilege, the principle is the same: the concern to prevent double recovery outweighs the public interest in encouraging settlements.
A “divisible injury” is one that has ‘no causal connection’ to a certain tort
An ‘indivisble injury’ is one that was ’caused or materially contributed to by a tort’
“concurrent torts” occur when their negligence combine to cause one injury and its consequential loss at the same time
“consecutive torts” occur when injury occurs from 2 torts which occurred at different times.
There is no valid policy reason to treat concurrent and consecutive torts differently when both are necessary causes of an indivisible injury and the losses consequential to it.
When dealing with ‘consecutive torts’ causing an ‘ indivisible injury’ the two causes of action are not separate: they are linked by the indivisible injury. That link brings into play not only joint and several liability but also the rule against double recovery.
The bottom line is that if you sue for an ‘indivisible injury’ and have already been partially or wholly compensated by one ‘tortfeasor’ for that injury, a subsequent tortfeasor can subtract the compensation amount from what he/she has to pay.